State Waits 19 years, 364 days to Indict: How Long is Too Long?

July 28, 2016 (Fault Lines) — Yesterday, the Ohio Supreme Court weighed in, reversing the Court of Appeals, and sending a rape case back for further review. If an indictment issues after the statute of limitations expires, the law is clear: the prosecution is barred. But what happens when the indictment issues on the eve of limitations expiring? Does it matter what happened during the lapse in time? The Ohio Supreme Court held it could matter if the accused can show actual prejudice from the delay. But first, the accused must show actual harm.

At issue was the 2013 indictment of Jones on a rape charge based on evidence found when an old rape kit was tested. Jones was accused of raping a woman he knew at his mother’s apartment in 1993, according to Ohio Supreme Court documents.

The woman identified Jones to police and at the hospital where a rape kit was obtained, Russell Bensing, Jones’ attorney, said in a court filing last fall.

Cleveland police set the investigation aside after two unsuccessful attempts to interview the accuser the following week and never tried to locate Jones or his mother, Bensing said.

Jones was indicted in 2013, one day before the deadline for prosecuting a case that old. His attorneys successfully asked a judge to throw out the case because the state took too long, and last year the appeals court upheld the decision.

Jones said his mother was home at the time and could have testified that the sex was consensual. She died in 2011, more than two years before he was indicted, unable to testify “solely due to the State’s sloth in prosecuting this case,” Bensing said.

In Ohio, the rape charge carried a 20 year statute of limitations. In 2013, one day before that limitations period was to expire, an indictment issued charging Jones with the 1993 rape. Despite the fact that Jones was identified by name and address immediately following the encounter, for whatever reason, police never followed up and simply closed the case. As near 20 years later as possible, the crime lab was working on clearing old cases and identified Jones as the contributor of DNA in the rape kit.

In the trial court, Jones and his attorney objected to the indictment and filed a motion to dismiss based on unconstitutional pre-indictment delay. Jones argued the delay prejudiced him because his mother had since passed away and was no longer available to testify to events that occurred in her home. He also argued that any 911 call and the complainant’s clothing were no longer available. He further argued the indictment delay was unjustified because his identity was known and did not require the use of the DNA evidence, and that the complainant was not “missing” as police asserted but was in fact handled and arrested by local police on numerous occasions since her initial police report. The trial court agreed and dismissed.

The Court of Appeals affirmed the dismissal, citing basic concepts of due process and fundamental justice, and concluded that Jones suffered actual prejudice as a result of the nearly 20-year delay between the alleged offenses and the indictment. And the Supreme Court took up the discretionary appeal.

The Supreme Court criticized the appellate court’s “due process and fundamental justice” standard of review. It noted pre-indictment delay violates due process only when it is unjustifiable and causes actual prejudice. In short, the Court recognized a two-part, burden-shifting test for determining whether the pre-indictment delay amounts to a violation of due process. That test requires the defendant to establish actual prejudice – separate from the state’s reasons for the delay – before the burden shifts to the state to justify its delay.

The Supreme Court’s reasoning is sound: the statute of limitations sets for a period of time beyond which there is an irrebuttable presumption that the defendant’s right to a fair trial would be prejudiced. So, we know that past a given point, the defendant cannot receive a fair trial. But, within that period of time, there is a presumption that it would be fair. This makes sense and thus places the burden on the defendant to show he was actually prejudiced by the delay.

Not surprisingly, courts are reluctant to dismiss cases filed within the statute of limitations period. But with periods that extend for great lengths of time, how is an accused to get a fair trial? Yes, the accused is presumed innocent, but juries don’t really believe that. Defendant’s don’t have to prove their innocence, yet juries expect them too. Is it fair to surprise someone 20 years later with an indictment? How would the accused even begin to gather evidence from 20 years ago? Are witnesses still available? What about receipts or phone records that might show a different version of facts? Just how much delay can there be?

The Supreme Court didn’t address how long is too long for a delay. It didn’t discuss what would constitute actual prejudice and what would not. As it should, the Court sent the case back for further review under the correct standard of law. So we’ll have to wait and see what the lower court decides. Until then, think about how long is too long if it were your life on the line.

Jeff,
Thank you so much for posting Russ Bensing’s post. He obviously covered the issue in much more depth. This was a great opinion, and even a “win” as he said. The Court could have ruled against Jones but didn’t. And, that’s huge in a reversal. The reversal had nothing to do with the merits of Jones’ appeal but rather simply with the standard applied by the lower court. Even on remand, it appears it will be likely that Jones can and should prevail. It seems to me, the lower court had gone so far as to say what the trial court said: Jones was actually prejudiced. But then they just screwed up on the standard of review.

I am hopeful they take the time to get it right on remand. 20 years is a long time. Jones suffered prejudice because his mother, a potential witness to what was happening or had happened in the home had died. While there is no way to know exactly what she would have testified to, there was still a prejudice. And of course, such a finding will shift the burden back to the state to prove the delay was justified. Under these facts in particular, it will hard to justify the delay. Jones was known by name and address. No other evidence was needed to proceed. The state just simply dropped the ball. And personally, they should not be able to pick that ball up 20 years later and succeed.

Hats off to Russ and his team for a great job!

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